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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

This matter is before the Authority on exceptions to an award of
Arbitrator Margery Gootnick filed by the Agency under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Regulations. The Union filed an opposition to the Agency's
exceptions.

The Arbitrator ordered the Agency to raise the grievant's performance
appraisal rating on three of her job elements and her summary rating. We
conclude that the Agency fails to establish that the award is deficient.
Accordingly, we deny the Agency's exceptions.

II. Background and Arbitrator's Award

The grievant is a program analyst, who was frequently tardy to work. In
the appraisal period prior to the one in dispute, the grievant's supervisor
rated her level 5 ("outstanding") on all of her job elements. This supervisor
testified at arbitration that for the first two-and-one-half months of the
disputed period, the grievant's work continued to be at level 5, despite the
fact that she was "frequently" and "noticeably" tardy at a rate "out of the
ordinary." Award at 9 (quoting supervisor).

During the disputed period, the grievant began working for another
supervisor. The grievant's new supervisor rated the grievant level 4
("excellent") on job elements II and III and level 1 ("minimally acceptable")
on element V.(1) Her summary rating was
"excellent." In the general summary attached to the grievant's performance
appraisal, this supervisor stated:

Id. at 13. The grievance claimed that the grievant's ratings for
elements II, III, and V should be raised to level 5 and that her summary rating
should be raised to "outstanding."

The Arbitrator framed the issue as whether the grievant's performance
appraisal was in accordance with the parties' collective bargaining agreement
and determined that it was not. She found that the appraisal violated
Article 34, Sections 1, 11, and 12 of the parties' agreement.(2)

The Arbitrator found that the grievant's supervisor had failed to
conduct a mid-year progress review, as required by Section 11. She also found
that the grievant's supervisor had failed to conduct any meaningful appraisal
interview and to provide any narrative on the individual standards on which the
grievant was rated, as required by Section 12. She concluded that these
violations deprived the grievant of notice regarding the risk of being
adversely evaluated because of tardiness. The Arbitrator acknowledged that on a
number of occasions the supervisor expressed his displeasure with her
tardiness. Nevertheless, the Arbitrator found that this did not inform the
grievant that, at least in her supervisor's judgment, her tardiness was
adversely affecting her work performance. The Arbitrator further stated that
the grievant's supervisor "cannot be permitted to rate an otherwise Outstanding
employee to be lower than Outstanding because of a tardiness problem that was
never made the subject of discipline." Id. at 18. Based on all of
these factors, the Arbitrator interpreted and applied the agreement as
precluding use of the grievant's tardiness in her performance appraisal.

The Arbitrator also found that the supervisor violated Article 34,
Section 1 by failing to appraise the grievant against the established
performance standards for the disputed job elements. She noted the supervisor's
testimony that on elements II and III, he considered the adverse effect of the
grievant's tardiness on the "reputation and credibility" of the office even
though this factor is not included in the standards for these elements.
Id. She found that it was clearly improper to appraise the grievant at
level 4 on elements II and III for conduct admittedly unrelated to the
established standards. With respect to element V, the Arbitrator determined
that the clear understanding within the division was that it was not necessary
to call in when less than 1 hour late and that the grievant "followed this
understanding" without exception. Id. at 12. Therefore, the Arbitrator
found that it was improper to appraise the grievant at level 1 on element V
when her tardiness did not violate any office policy or procedure.

Accordingly, the Arbitrator canceled the grievant's ratings for
elements II, III, and V, expressly finding that the impropriety that
permitted the cancellation of the disputed performance ratings "was the
Agency's reliance on her tardiness to lower her rating." Id. at 20. The
Arbitrator noted that the grievant's supervisor had admitted that the grievant
would have received a summary rating of "outstanding," but for her tardiness,
and the Arbitrator determined that if the Agency had not violated the
collective bargaining agreement, it would have rated the grievant at level 5 on
elements II, III, and V and would have given her a summary rating of
"outstanding." Accordingly, the Arbitrator sustained the grievance and ordered
the Agency to grant those ratings.(3)

III. Exceptions

A. Agency's Contentions

The Agency contends that the award is deficient on several grounds.

First, the Agency contends that the award is contrary to section
7106(a) of the Statute and the approach of the Authority set forth in U.S.
Department of Health and Human Services, Social Security Administration and
American Federation of Government Employees, Local 1122, 34 FLRA 323 (1990)
(SSA). It argues that the award is contrary to section 7106(a) because
the Arbitrator altered the content of the disputed performance standards by
precluding consideration of the grievant's tardiness. Relying on Patent
Office Professional Association and U.S. Department of Commerce, Patent and
Trademark Office, 48 FLRA 129 (1993) (proposal 2), petition for review
denied sub nom., POPA v. FLRA, 47 F.3d 1217 (D.C. Cir. 1995)
(PTO), the Agency also maintains that the award interferes with
management's rights by preventing the Agency from holding the grievant
accountable for her tardiness. The Agency further argues that the Arbitrator's
findings under SSA are not sustainable because all of the violations
found by the Arbitrator were harmless and the Arbitrator did not determine what
the grievant would have been rated if she had been provided a progress review.
Instead, the Agency asserts that the Arbitrator altered the performance
standards and evaluated the grievant under the altered standards.

Second, the Agency contends that the award is contrary to rules and
regulations. The Agency claims that the award violates 5 C.F.R.
§ 430.204(d)(2) because it "immunizes the employee from
accountability for errors or failures to meet lawful organizational goals and
objectives."(4) Exceptions at 7. The Agency
also claims that the award violates Bureau of Engraving Manual chapter 630-B,
which provides that "attendance which interferes with the accomplishment of the
agency mission may be used as a basis for a lower overall rating." Exceptions
at 7. The Agency maintains that these regulations, the Agency's
performance appraisal regulations, and "basic workplace rules," id. at
28, allow for consideration of tardiness in performance appraisals and that
there was ample testimony presented to the Arbitrator establishing the adverse
effects of tardiness on the grievant's performance.

Third, the Agency contends that the award fails to draw its essence
from the parties' collective bargaining agreement. It claims that the
Arbitrator improperly applied the parties' collective bargaining agreement to
preclude consideration of the grievant's tardiness because the grievant had
never been disciplined. The Agency also argues that the Arbitrator
misinterpreted the agreement by finding contractual requirements to counsel the
grievant about the potential effects of her tardiness and to tell employees
that certain matters can lower their performance ratings. The Agency further
asserts that such an obligation in this case would have been meaningless
because the disputed performance standards were different from those applied to
the grievant in the prior year.

Fourth, the Agency contends that the Arbitrator's finding that the
grievant was never notified that her tardiness could affect her performance
ratings is a nonfact. The Agency maintains that the grievant was provided with
notice through her performance standards, which she admitted receiving and
never questioning. The Agency also asserts that the grievant's supervisor
discussed the effect her tardiness could have on her performance appraisal and
that, consequently, the Arbitrator's finding to the contrary is based on a
nonfact. The Agency further asserts that the Arbitrator's finding that the
grievant followed all office policies despite her habitual tardiness is
likewise based on a nonfact.

Fifth, the Agency contends that the Arbitrator exceeded her authority
by deciding issues that were not before her.

B. Union's Opposition

The Union contends that the Agency has failed to establish that the
award is deficient on any of the grounds alleged.

The Union argues that the award is not contrary to law or regulation.
The Union claims that, contrary to the Agency's assertion, the Arbitrator did
consider the grievant's tardiness, but simply concluded that it did not affect
her performance. The Union also maintains that the award is consistent with
SSA and evidences no alteration of the content of the performance
standards.

The Union also argues that the award draws its essence from the
agreement. It maintains that the Agency mischaracterizes the award as holding
that the grievant's tardiness could not be used in her appraisal unless she was
first disciplined. The Union further argues that the award is not based on
nonfacts and that the Arbitrator decided precisely the issue submitted.

IV. Analysis and Conclusions

A. The Award is Not Contrary to Section 7106(a)

1. Analytical Framework

The Authority set forth in SSA the following two-prong
test to determine whether an arbitration award resolving a performance
appraisal grievance impermissibly affects management's rights to direct
employees and assign work under section 7106(a)(2)(A) and (B) of the
Statute:

First, an arbitrator must find that management has not applied the
established standards or has applied them in violation of law, regulation, or a
provision of the parties' collective bargaining agreement. If that finding is
made, an arbitrator may cancel the grievant's performance appraisal or rating.
Second, if the arbitrator is able to determine based on the record what the
performance appraisal or rating would have been had management applied the
correct standard or if the violation had not occurred, the arbitrator may order
management to grant that appraisal or rating. If the arbitrator is unable to
determine what the grievant's rating would have been, he must remand the case
to management for reevaluation.

34 FLRA at 328.

Subsequent to the Authority's decision in SSA, the Supreme Court
construed the language of section 7106 of the Statute in a manner that requires
us to reexamine the first prong of this test.(5)SeeIRS v. FLRA, 494 U.S. 922 (1990). First,
the Court held that the "nothing in this chapter" language of section 7106
means that nothing in the entireStatute, including grievance
arbitration under section 7121, can affect the authority of management
officials to exercise, in accordance with applicable laws, the management
rights enumerated in section 7106(a)(2) of the Statute. 494 U.S.
at 928. Second, in construing the "in accordance with applicable laws"
language of section 7106(a)(2), the Court ruled that the Statute does not
empower unions to enforce all external limitations on the enumerated rights,
but only those limitations contained in applicable laws. Id. at 931.
Third, the Court rejected a construction of the Statute that would equate the
term "applicable laws" with the phrase "any law, rule, or regulation" in
section 7103(a)(9) of the Statute.(6)

In addition to the statutory limit on management rights resulting from
the term "applicable laws" in section 7106(a)(2) of the Statute, an agency's
authority to exercise the rights enumerated in section 7106(a) is expressly
made "subject to" section 7106(b), which states that "[n]othing in [section
7106] shall preclude an agency from negotiating" over the matters set forth in
section 7106(b). Consistent with the language and structure of section 7106, it
is clear that section 7106(b) constitutes a separate limitation on, or
exception to, management rights under section 7106(a).(7)SeeAssociation of
Civilian Technicians, Montana Air Chapter No. 29 v. FLRA, 22 F.3d
1150, 1155 (D.C. Cir. 1994) ("§ 7106(b) is indisputably
an exception to § 7106(a)." (emphasis in original)).

On reexamination, we revise the SSA analysis to comport with
this construction of section 7106. In accordance with the plain wording of the
Statute and the decision in IRS v. FLRA, it is clear that, with the
limited exception of matters subject to the "carve-out" doctrine as discussed
in note 7 above, an arbitration award that affects management rights under
section 7106(a)(2) may provide a remedy only for a violation of either
applicable law, within the meaning of section 7106(a)(2), or a contract
provision that was negotiated pursuant to the exceptions to section 7106(a)
that are set forth in section 7106(b).(8) Thus, under prong I, an arbitrator may cancel a performance
rating only if management applied the established performance standards for
that job element in violation of either an applicable law or a provision of the
parties' collective bargaining agreement on a section 7106(b) matter. In
addition, an arbitrator may cancel a rating only if the violation affected that
rating. Cf.American Federation of Government Employees, Local 1843
and U.S. Department of Veterans Affairs Medical Center, Northport, New
York, 51 FLRA 444, 448-49 (1995) (there must be a sufficient nexus between
the remedy and the violation for which relief is provided). This revision
applies the same approach to awards resolving performance appraisal grievances
that are claimed to affect management rights that we apply to awards claimed to
affect other management rights. Cf.U.S. Department of Veterans
Affairs Medical Center, Birmingham, Alabama and American Federation of
Government Employees, Local 2207, 51 FLRA 270, 274 (1995) (finding no
basis in the Statute to apply a different approach to management's right to
discipline than is applied to other management rights under section 7106(a)).

Under the revised analysis, agency regulations that do not constitute
applicable laws, contract provisions that are not enforceable consistent with
section 7106, and management's failure to apply established performance
standards provide no basis for canceling a performance rating. Thus, the
Authority will find an award deficient if the arbitrator canceled a performance
rating solely because management failed to apply established performance
standards; violated a regulation that does not constitute an applicable law; or
violated an agreement provision that is not enforceable consistent with section
7106 of the Statute. Accordingly, we will no longer follow such decisions as
U.S. Department of the Air Force, 509th Bombardment Wing, Pease Air Force
Base, New Hampshire and National Association of Government Employees, Local
R1-111, 41 FLRA 1035 (1991) (arbitrator canceled disputed performance
ratings solely on the basis of the agency's failure to apply the established
performance standards) and U.S. Department of the Army, Headquarters, Army
Garrison, Fort Richie, Maryland and National Federation of Federal Employees,
Local 115, 43 FLRA 968 (1992) (arbitrator canceled the grievant's
performance appraisal solely on the basis of the agency's failure to comply
with an agency regulation).

Prong II of the analysis requires that the award must reflect a
reconstruction of what management's appraisal of the grievant would have been
if management had acted properly. Thus, an arbitrator who has properly canceled
an appraisal or rating under the revised prong I may order management to change
the grievant's rating only when the arbitrator is able to determine what
management would have rated the grievant's performance if management had not
violated applicable law or a contract provision concerning a section 7106(b)
matter. An arbitrator does not properly reconstruct what management would have
rated the grievant's performance when the arbitrator independently appraises or
rates a grievant, or determines what management would have rated the grievant
using standards different from those established by management.

When the arbitrator is unable to reconstruct what the grievant's
appraisal or rating would have been had management acted properly, the
arbitrator must remand the case to management for reevaluation.

2. Application of the Revised AnalyticalFramework

a. Prong I

Applying this revised analytical framework in this case, we conclude
that the Arbitrator properly canceled the grievant's ratings on the disputed
job elements. The Arbitrator found that management violated Article 34,
Sections 1, 11, and 12 in appraising the grievant on those elements.
Management's evaluation of employees under an established performance appraisal
system constitutes the exercise of the rights to direct employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute. E.g.,
AFGE, 30 FLRA at 1158-59. By canceling the grievant's ratings for
those elements, the award affects the exercise of those rights. However, we
find that Article 34, Sections 1, 11, and 12, as interpreted and applied
by the Arbitrator, constitute arrangements within the meaning of section
7106(b)(3) of the Statute and were enforced by the Arbitrator consistent with
Department of the Treasury, U.S. Customs Service and National Treasury
Employees Union, 37 FLRA 309 (1990).

As interpreted and applied by the Arbitrator, Article 34,
Sections 1, 11, and 12 required management to apply the established
performance standards to the grievant and to inform the grievant that her
tardiness was adversely affecting her work performance under those standards
prior to holding her accountable for tardiness in her performance appraisal. We
find that these provisions, as enforced by the Arbitrator, provide relief to
ameliorate the adverse effects on employees of being evaluated on matters on
which they were never informed they would be appraised. SeePatent
Office Professional Association and U.S. Department of Commerce, Patent and
Trademark Office, Washington, D.C., 47 FLRA 10 (1993) (provision 11),
review denied as to other matters, 26 F.3d 1148 (D.C. Cir. 1994) (a
provision that is intended to provide relief to an employee whose performance
is adversely evaluated on matters beyond the employee's control constitutes an
arrangement under section 7106(b)(3) of the Statute); cf.National
Treasury Employees Union and U.S. Department of the Treasury, Office of Chief
Counsel, Internal Revenue Service, 39 FLRA 27 (1991) (provision 12),
aff'd in relevant part sub nom., IRS, Office of Chief Counsel v.
FLRA, 960 F.2d 1068 (D.C. Cir. 1992) (a provision that precludes
consideration of a performance evaluation that would adversely affect the
employee unless it had been provided to the employee constitutes an arrangement
under section 7106(b)(3) of the Statute) (Office of Chief Counsel).
Accordingly, as the provisions "address adverse effects flowing from the
exercise of a protected management right[,]" they constitute arrangements.
Office of Chief Counsel, 960 F.2d at 1073.

Because such provisions reserve to management the right to evaluate all
performance under established performance standards as to which employees have
been informed they will be appraised, their enforcement clearly does not
abrogate management rights under section 7106(a)(2)(A) and (B).(9) Accordingly, the Arbitrator's
cancellation of the grievant's performance appraisal as a remedy for the
Agency's violations of Article 34 is not contrary to law.

Under prong I, the amount of harm caused by an agency's actions is not
considered in canceling a disputed appraisal when management has improperly
applied the established performance standards. SeeSSA,
34 FLRA at 327-28. Thus, the Agency's argument that its violations of the
agreement were harmless provides no basis for concluding that the prong I
finding is deficient. Furthermore, contrary to the Agency's claim, the
Arbitrator found that the violations were not harmless.

b. Prong II

We conclude that the Arbitrator's prong II determination is not
deficient. As interpreted and applied by the Arbitrator, Article 34,
Sections 1, 11, and 12 required management to apply the established
performance standards to the grievant and to inform the grievant that her
tardiness was adversely affecting her work performance under those standards
prior to holding her accountable for tardiness in her performance appraisal.
The Arbitrator found that the Agency violated Sections 11 and 12, by using the
grievant's tardiness in her performance appraisal without having informed her
that her tardiness was adversely affecting her performance under the
established performance standards, and violated Section 1, by failing to
appraise the grievant against the established performance standards for the
disputed job elements. Finally, she specifically found that the grievant's
supervisor had admitted that the grievant would have received a summary rating
of "outstanding," but for her tardiness. In sum, the Arbitrator found that: (1)
the Agency violated three separate provisions of Article 34 by basing the
grievant's rating in part on her tardiness; and (2) the Agency admitted that
this use of tardiness was the dispositive reason that the grievant had not
received a rating of "outstanding." Therefore, in determining that the grievant
should be rated level 5 on all disputed elements, the Arbitrator properly
reconstructed what management would have rated the grievant's performance had
it fulfilled the requirements of Article 34.

We reject the Agency's claim that the award is deficient because the
reconstruction is not based on a failure to provide a progress review. The
Agency has misapprehended the extent of the violations found by the Arbitrator,
which, as discussed above, were much more extensive than a failure to provide a
progress review. Furthermore, because the Arbitrator reconstructed what
management would have rated the grievant under the established performance
standards had it acted properly, the Arbitrator applied, and did not alter,
those standards. Accordingly, the Arbitrator's order to raise the grievant's
ratings is not contrary to law.

c. Summary

In sum, we conclude that the Arbitrator's cancellation of the
grievant's appraisal on the disputed job elements and order to raise the
grievant's ratings on those elements and her summary rating are not contrary to
section 7106(a) of the Statute. Accordingly, we deny this exception.

B. The Award is Not Contrary to Any Governing Rule or Regulation

The Agency fails to establish that the award "immunizes" the
grievant from accountability and, therefore, that it is contrary to
5 C.F.R. § 430.204(d)(2), as in effect at the time of the
grievant's appraisal.(10) Exceptions at 7. The Arbitrator did not prohibit the Agency
from considering tardiness in performance appraisals; she merely enforced the
Agency's agreement to notify employees prior to such accountability. Nothing in
section 430.204(d)(2) prohibited the Arbitrator from enforcing the Agency's
agreement to inform the grievant that tardiness was adversely affecting her
work performance under the established performance standards prior to holding
her accountable in her performance appraisal for tardiness.

We similarly conclude that the award is not contrary to Bureau of
Engraving Manual chapter 630-B, the Agency's performance appraisal regulations,
or the unspecified "basic workplace rules" referred to by the Agency. Even if
we were to assume that these rules and regulations are governing regulations
and that they mandated consideration of the grievant's tardiness under her
established performance standards, no basis is provided for finding the award
deficient. No provision is cited or apparent that prohibited the Arbitrator
from enforcing the Agency's agreement to inform the grievant that tardiness was
adversely affecting her work performance under the established performance
standards prior to holding her accountable in her performance appraisal for
tardiness.

Accordingly, we deny this exception.

C. The Award Draws Its Essence From the Agreement

The Arbitrator interpreted and applied Article 34 as requiring the
Agency to inform the grievant that tardiness was adversely affecting her work
performance prior to holding her accountable for tardiness when appraising her
under the established performance standards. The Agency has not demonstrated
that this interpretation disregards the agreement or is irrational, unfounded,
or implausible. SeeUnited States Department of Labor (OSHA) and
National Council of Field Labor Locals, 34 FLRA 573, 575-77 (1990).

In so finding, we reject the Agency's argument that the award does not
draw its essence from the agreement because the Arbitrator relied on the
Agency's failure to discipline the grievant for tardiness. Assuming, without
deciding, that the Arbitrator did rely on the Agency's failure to discipline
the grievant, and even assuming further that this finding cannot be derived
from the agreement, the award, viewed as a whole, would still draw its essence
from the agreement, as discussed below. Cf.U.S. Department of the
Treasury, Internal Revenue Service, Indianapolis District and National Treasury
Employees Union, Chapter 49, 36 FLRA 227, 231 (1990) (IRS,
Indianapolis) (exception disputing a separate and independent ground for
the award provides no basis for finding the award deficient when the exception
to the arbitrator's other ground for the award has been denied).

In canceling the disputed ratings, the Arbitrator specifically found
that the Agency violated provisions of the parties' collective bargaining
agreement when it appraised the grievant on the disputed job elements. She
found that the supervisor had failed to conduct a mid-year progress review, as
required by Article 34, Section 11, and had not conducted any meaningful
appraisal interview or provided any narrative on the individual standards on
which the grievant was rated, as required by Article 34, Section 12. She
concluded that these violations deprived the grievant of notice regarding the
risk of being adversely evaluated because of tardiness. She also found that the
grievant's supervisor had violated Article 34, Section 1 by failing to
appraise the grievant against the established performance standards for the
disputed job elements.

Finally, the Arbitrator stated that the grievant's supervisor "cannot
be permitted to rate an otherwise Outstanding employee to be lower than
Outstanding because of a tardiness problem that was never made the subject of
discipline." Award at 18. Although the Agency claims that this latter
statement does not draw its essence from the agreement, it does not assert that
this alleged finding, by itself, was the basis for the award. Rather, the
Agency also argues that the Arbitrator misinterpreted the agreement by finding
a requirement to counsel the grievant or to otherwise give her notice that
tardiness could lower her performance rating. In view of the fact that the
Arbitrator relied on multiple agreement violations and our conclusion that
those portions of the award are not irrational, unfounded, or implausible, the
Agency has not established that the award is deficient on this basis.
Cf.IRS, Indianapolis.

We also reject the assertion that the award fails to draw its essence
from the agreement because the disputed performance standards were different
from those applied to the grievant in the prior year. The Agency has not
established that different standards were applied to the grievant the previous
year and that, contrary to the finding of the Arbitrator, those standards
informed the grievant that she would be held accountable for her tardiness.

Accordingly, we deny this exception.

D. The Award Is Not Based on a Nonfact

To establish that an award is based on a nonfact, the appealing party
must establish that the central fact underlying the award is clearly erroneous,
but for which a different result would have been reached by the arbitrator.
U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and
National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593
(1993). However, we will not find an award deficient on the basis of an
arbitrator's determination on any factual matter that the parties had disputed
at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal
Service, 751 F.2d 834, 843 (6th Cir. 1985)).

The Agency asserts that the Arbitrator's findings that the
grievant was never notified that tardiness could affect her performance and
that the grievant followed all office policies are nonfacts. However, it is
clear that the parties disputed before the Arbitrator both the Agency's policy
on time and attendance, and whether the Agency had informed the grievant that
her tardiness was adversely affecting her work performance. Consequently, the
Agency's assertions provide no basis for finding the award deficient as based
on a nonfact. Id. Accordingly, we deny this exception.

E. The Arbitrator Did Not Exceed Her Authority

As relevant here, arbitrators exceed their authority when they resolve
an issue not submitted to arbitration. E.g., Sport Air Traffic
Controllers Organization and U.S. Department of the Air Force, Headquarters,
Air Force Flight Test Center, Edwards Air Force Base, California, 51 FLRA
1634, 1638 (1996). The Agency fails to establish that the Arbitrator resolved
an issue not submitted. In the absence of a stipulated issue, the Arbitrator
framed the issue as whether the grievant's appraisal was in accordance with
Article 34 of the agreement. The award is directly responsive to this issue.
Accordingly, we deny this exception. Seeid.

V. Decision

The Agency's exceptions are denied.

APPENDIX

The disputed performance standards provide:

Element II: Quality of Work

OUTSTANDING: All assignments were accomplished as assigned. Draft
reports were submitted as specified and addressed all pertinent issues as
expressed in the assignment. All final reports rendered were complete,
grammatically correct, contained no misspelled words, and incorporated all
changes requested by supervisor or manager. All reports include recommendations
and suggestions for additional analysis or follow-up.

EXCELLENT: All assignments except one were accomplished as assigned.
Draft reports were submitted as specified and addressed all pertinent issues as
expressed in the assignment. All final reports rendered were complete,
grammatically correct, contained no more than one misspelled word, and
incorporated all changes requested by supervisor or manager. All reports
included recommendations.

Element III: Timeliness in Completion of Assignments

OUTSTANDING: All assignments were accomplished as assigned and draft
reports were submitted during the timeframe specified. All final reports were
rendered complete, incorporated all changes specified by the supervisor or
manager and were returned within the timeframe requested by that person. The
manager or supervisor is informed of all delays and suggested revisions of
deadlines are offered.

EXCELLENT: All assignments except one were accomplished as assigned
within the timeframe specified. Draft reports were submitted as specified. All
but one final report was rendered complete within the timeframe specified and
incorporated all changes requested by the supervisor or manager. The manager or
supervisor is informed of all delays.

MINIMALLY SUCCESSFUL: Occasionally fails to follow Office/Divisional
policies/procedures with minor loss in productivity or other adverse impact; is
late or absent on several occasions without notifying supervisor; usually fails
to notify supervisor well in advance of planned training, absences,
etc.

Article 34 of the agreement pertinently provides:

Section 1

This Article shall govern the administration of the Employee
Performance Appraisal system (EPAS) for all employees within the bargaining
unit. The EPAS shall be used to compare the employees' performance of assigned
duties and responsibilities against established performance standards.

Section 11

(a) The supervisor shall provide each employee with mid-period
Progress Review during each annual appraisal period. The Progress Review covers
the period from October 1 through the following March 31. The Progress
Review must be completed within one (1) month after the end of the
mid-period (by April 30 of each year).

(b) The Progress Review shall cover the entire Performance Plan.
During the Progress Review the supervisor will discuss and provide to the
employee his specific written assessment of how the employee is accomplishing
the Performance Plan. No summary rating will be assigned on the Progress
Review.

Section 12

(a) At the conclusion of the annual appraisal period, the supervisor
will prepare a written performance appraisal. The appraisal will consist of a
brief narrative on each standard, including an assessment of whether the
employee meets, exceeds or fails to meet the minimally acceptable level or the
fully successful level for each of the standards set forth in the Performance
Plan. The employee will be assigned one of the adjective summary ratings set
forth in Section 2. Summary ratings will not be assigned to individual
performance elements.

(b) The written performance appraisal will be provided to the
employee at the appraisal interview. The interview will include a discussion of
the employee's overall achievements with respect to each element and standard,
as well as the determination of the employee's summary rating.

Section 7106 of the Statute provides:

(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--

(1) to determine the mission, budget, organization, number of
employees, and internal security practices of the agency; and

(2) in accordance with applicable
laws--

(A) to hire, assign, direct, layoff, and retain employees in the
agency, or to suspend, remove, reduce in grade or pay, or take other
disciplinary action against such employees;

(B) to assign work, to make determinations with respect to
contracting out, and to determine the personnel by which agency operations
shall be conducted;

(C) with respect to filling positions, to make selections for
appointments from--

(i) among properly ranked and certified candidates for
promotion; or

(ii) any other appropriate source; and

(D) to take whatever actions may be necessary to carry out the
agency mission during emergencies.

(b) Nothing in this section shall preclude any agency and any labor
organization from negotiating--

(1) at the election of the agency, on the numbers, types, and
grades of employees or positions assigned to any organizational subdivision,
work project, or tour of duty, or on the technology, methods, and means of
performing work;

(2) procedures which management officials of the agency will
observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by
the exercise of any authority under this section by such management
officials.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

1. The applicable performance standards
for these elements are set forth in an appendix.

2. Article 34, Sections 1, 11 and 12
are set forth in the appendix. The Arbitrator also found that the failure to
provide the grievant with a progress review violated an agency bulletin that
reminded supervisors to provide progress reviews to their subordinates.

3. In addition, the Arbitrator ordered
the Agency to pay the grievant the difference between the performance award
that she received and the award she would have received if she had been rated
"outstanding." The Arbitrator also left the record open for a motion for
attorney fees.

4. At the time of the arbitration in
this case, 5 C.F.R. § 430.204(d)(2) (1994) provided:

Accomplishment of organizational objectives should, when appropriate,
be included in performance plans by incorporating objectives, goals, program
plans, work plans, or by other similar means that account for program results.

6. The case was remanded to the
Authority to consider the scope of the term "applicable laws." On remand, the
Authority construed the term to encompass rules and regulations having the
force and effect of law. National Treasury Employees Union and U.S.
Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991),
enforcement denied on other grounds, 996 F.2d 1246 (D.C. Cir. 1993)

7. The Authority has also held that,
notwithstanding the "breadth and effect that the Court has ascribed to the
phrase 'nothing in this chapter,'" it is necessary to "carve out an exception
to section 7106(a)" to maintain the negotiability of matters involving official
time under section 7131(d) of the Statute. National Treasury Employees Union
and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms, 45 FLRA 339, 347-48 (1992). See alsoU.S.
Department of Defense, Army and Air Force Exchange Service and American
Federation of Government Employees (Worldwide Consolidated Bargaining
Unit), 51 FLRA 1371, 1374-75 (1996) (Chair Segal concurring in part and
dissenting in part).

8. When an arbitrator has enforced a
provision of the parties' collective bargaining agreement that constitutes an
arrangement within the meaning of section 7106(b)(3) of the Statute, we apply
the analysis of Department of the Treasury, U.S. Customs Service and
National Treasury Employees Union, 37 FLRA 309 (1990) (Customs
Service), to determine whether the arbitrator's enforcement of the
agreement is contrary to section 7106(a)(2)(A) and (B). Under Customs
Service, an arbitrator's enforcement of an arrangement within the meaning
of section 7106(b)(3) is not contrary to management rights unless the
enforcement would abrogate the exercise of a management right.

9. In this regard, we reject the
Agency's reliance on PTO. PTO was a negotiability case and was
resolved on the basis of an excessive interference analysis rather than the
abrogation analysis required under Customs Service. E.g., U.S.
Department of Justice, Immigration and Naturalization Service and American
Federation of Government Employees, National Immigration and Naturalization
Service Council, 42 FLRA 222, 231-32 (1991).

10. In 1995, a revised 5 C.F.R. part
430 became effective without a provision comparable to 5 C.F.R. §
430.204(d)(2), as quoted in note 4. However, we have applied the quoted
provision because it was in existence at all relevant times, and whatever
rights the Agency had under this provision would be impaired if the Authority
applied the revised part 430 in resolving the Agency's exception.
SeeU.S. Department of the Army, Headquarters, U.S. Army Aviation
Center, Fort Rucker, Alabama and Wiregrass Metal Trades Council, 52 FLRA
89, 91 n.3